This was originally conceived as a reply to a writeup that asserted "fraud" should not be a crime. The writeup conflated "lying" and fraud, crimes and torts, and was otherwise confused, and met with an untimely death. However, I feel more comfortable writing in an adversarial posture, so just pretend the old writeup is there, ok? Thanks.

There is a variety or species of fraud which is peculiar to certain professions or relationships between people. These people are called “fiduciaries”, meaning persons in whom one places trust and confidence. Lawyers, accountants, bankers, investment brokers are all by law “fiduciaries”. They have special profession knowledge, and law permits you to trust or rely on their advice. Talking about this kind of fraud, which is technically called “constructive” fraud --a fraud construed by a court from special circumstances, as oppposed to “actual” fraud-- we can become very confused. Constructive fraud isn't really "fraud", it's nothing more than negligence: negligent misrepresentation. I have contributed a writeup agreeing that sometimes “constructive fraud” claims can be abused, especially in the area of securities fraud. If this is what the first writeup is agitated about, however, the answer is simple: don’t get a job being a “fiduciary”. To be trusted is a heavy burden. To know that a client can lose, money, liberty, or lose custody of a child because of your advice: that's scary. If that kind of responsibility offends you, get a job in marketing! Then everyone will assume you aren't telling the truth and deal with you as your writeup suggests.

Since the writeup is careful to disclaim approval for fraudulent activities, one detects at least a glimmer of understanding that there might be some moral approbrium attached to fraud. The writeup posits, however, that the wrong should be addressed with contract law.

This begs the questions, since in some contract cases, the complaining party can obtain exemplary or “punitive” damages, if the breaching party did not merely fail to perform, but did so fraudulently. Contract law assumes there are some times when it makes economic sense to call a deal off and “breach” a contract, so “breach” does not mean immoral or bad behavior, it just means you have assumed the risk of loss and have to pay the other guy to restore the status quo. Thus, clearly there is something about fraud which makes such behavior especially bad and worthy of punishment, even in contract law.

Then, however, are we talking crime or tort? The difference is significant, if “government interference” is the evil to be evaded. A tort is a private wrong, asserted and dismissed at the will of one private individual against another. It seeks compensation in the coin of the realm. Crime, on the other hand, is prosecuted by officers of the sovereign. It seeks to punish. Compensation or “restitution” to the victims is at best a secondary consideration. Punishment is generally meted out by taking from you something you cannot borrow or replace: your liberty.

In the Anglo-American legal traditional, we are considerably more skeptical of the government’s interest in punishment than we are of any private claim for compensation. This is reflected in the doctrine of burden of proof. In criminal cases, the government must prove its case beyond a reasonable doubt (say, at least 75% sure of guilt, perhaps even 90% for capital crimes) while the equivalent standard for a private tort lawsuit is merely a preponderance of the evidence (more probable than not: a mere 51% that defendant is at fault).

The title of the node indicates that criminal law is the subject, but the first sentence of the first writeup gave a list of torts: fraud, libel, slander. This reveals confusion. Defamation (libel and slander) is a personal injury. This generally means private lawsuit, in the United States. Libel is usually not a crime in the States...

(Fun Fraud Fact: So far as I know, Colorado is the only State in the United States, and probably only government in the world, that makes vegetable defamation or food disparagement a crime. Colo.Rev.Stat., §35-31-101 (1994). In other states where "food libel" is against the law, it is enforced with private lawsuits for damages, like the Beef Industry lawsuit against Oprah).

Fraud, however, is a species of theft, and thus an age-old crime against the community, or “the King’s Peace” if you will. The first writeup seemed concerned about the criminalization of lying, but fraud is more than “disseminating false information”. It also involves taking the property of others, and doing so with malificent intent. As defined in the State of New Mexico (and probably not much different elsewhere):

Fraud includes the intentional taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations. N.M. Stat. Ann. 1978, § 30-16-6 (1987).

This definition is intended to define the scope of things which are punishable as criminal fraud. That scope is: the whole range of acts or words that are “fraudulent”. But what is “fraudulent”? “Fraudulent” is an evil, culpable state of mind. It is, in legal terminology, the “mens rea” of the crime of fraud.

Intent is everything is fraud cases. "Fraud" is not malum prohibitum, an act which is a crime regardless of intent. Fraud requires proof of criminal intent, an intent to trick or deceive. Thus, accidentally writing a bad check, thinking you have the money in the account, isn’t “fraud” (though it may be crime under some other heading, such as the crime of writing a worthless check) because it lacks the requisite intent.

Deliberate deception, with the intent to take something that does not belong to you, is not “information”. It is not a sales transaction. It's bad, bad, badness: whether it’s the old bait and switch or social engineering, the three card monty or any of the innumerable scams devised by mankind since language was invented.


Colorado’s Food Libel Law: http://www.cspinet.org/foodspeak/oped/food_sedition.html

Fraud (?), n. [F. fraude, L. fraus, fraudis; prob. akin to Skr. dhrv to injure, dhv to cause to fall, and E. dull.]

1.

Deception deliberately practiced with a view to gaining an unlawful or unfair advantage; artifice by which the right or interest of another is injured; injurious stratagem; deceit; trick.

If success a lover's toil attends, Few ask, if fraud or force attained his ends. Pope.

2. Law

An intentional perversion of truth for the purpose of obtaining some valuable thing or promise from another.

3.

A trap or snare.

[Obs.]

To draw the proud King Ahab into fraud. Milton.

Constructive fraud Law, an act, statement, or omission which operates as a fraud, although perhaps not intended to be such. Mozley & W. -- Pious fraud Ch. Hist., a fraud contrived and executed to benefit the church or accomplish some good end, upon the theory that the end justified the means. -- Statute of frauds Law, an English statute (1676), the principle of which is incorporated in the legislation of all the States of this country, by which writing with specific solemnities (varying in the several statutes) is required to give efficacy to certain dispositions of property.

Wharton.

Syn. -- Deception; deceit; guile; craft; wile; sham; strife; circumvention; stratagem; trick; imposition; cheat. See Deception.

 

© Webster 1913.

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